HomeMy WebLinkAbout03-603 ConfidentialADVICE OF COUNSEL
November 20, 2003
03 -603
Re: Conflict; Public Official /Employee; City; Council Member; Redevelopment Plan;
Renting in Target Area; Vote.
This responds to your letter of October 20, 2003, by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a city council
member as to participating in matters involving a redevelopment plan for a "target area"
of the city when the council member rents his residence in the "target area."
Facts: You are a Member of Council for the City of A ( "City "). A large scale
redevelopment plan currently valued at [dollar amount] is now in the planning stage.
The redevelopment plan involves the purchase and safe by the City's Redevelopment
Authority of real estate in the "target area" of the City. City Council has already voted to
continue the redevelopment plan, and will likely vote on numerous other occasions as
the redevelopment plan progresses.
Based upon the above facts, you pose the following inquiries.
"1. Is it a conflict to live in the target area? There are hundreds, maybe thousands of
people living in this area. I rent a house in this area.
2. Is it a conflict to work in this area? Two other councilmen work for B, the C in the
area with over [number] employees. Part of the plan calls for the City to buy some of
B's real estate, most of which is not in use.
3. Is it a conflict if you own rental properties in the area? One Councilman owns
[number] rental properties in the area, another owns [number] rental properties.
4. Is it a conflict if you own or rent a business in the area ?"
You also seek advice as to a course of action as to filing a complaint against
some of your colleagues who you believe have violated the Ethics Act. You ask
whether you alone should file the complaint or whether local resident(s) should join you.
Confidential Advice, 03 -603
November 20, 2003
Page 2
Finally, you ask whether you should retain an attorney in this matter.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage in
an independent investigation of the facts, nor does it speculate as to facts which have
not been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only to the person whose conduct is in
question, his authorized representative, or, when applicable, his appointing body or
employer. To the extent you have inquired as to the conduct of Members of City
Council without their express permission, you are considered a third party without legal
standing. Therefore, this advisory must necessarily be limited to addressing only your
prospective conduct.
As a member of the A City Council, you are a public official as that term is
defined in the Ethics Act, and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Confidential Advice, 03 -603
November 20, 2003
Page 3
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. § 1103(j).
In each instance of a conflict, Section 1103(j) requires the public official/
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/
public employee himself, any member of his immediate family, or a business with which
he or a member of his immediate family is associated.
Confidential Advice, 03 -603
November 20, 2003
Page 4
As to your first question, pursuant to Section 1103(a) of the Ethics Act, you would
have a conflict of interest as to matters involving the redevelopment plan if such matters
would result in a financial benefit to you. Based upon the submitted facts, it would not
appear that your participation in redevelopment plan matters would result in a financial
gain to you. An example of a financial gain would be a reduction in your rent. Absent a
financial gain, you would not have a conflict of interest and would not transgress Section
1103(a) of the Ethics Act by participating in matters involving the redevelopment plan.
Your second through fourth questions relate to the conduct of third parties. As
noted above, an opinion /advice may not be issued in response to an unauthorized
request concerning the conduct of third parties under the Ethics Act.
With respect to your question pertaining to the filing of a complaint, you are
advised that if the activity in question has already occurred, the Commission may not
issue an opinion /advice, but any person may then submit a signed and sworn complaint
which will be investigated by the Commission if there are allegations of Ethics Act
violations by a person who is subject to the Ethics Act. One person filing the complaint
alone is sufficient. Be further advised that a complainant who: files a frivolous complaint
(a complaint filed in a grossly negligent manner without basis in law or fact); files a
complaint without probable cause and primarily for a purpose other than that of
reporting a violation of the Ethics Act; or publicly discloses that a complaint against a
person has been filed with the Commission, commits a "wrongful use" of the Ethics Act
and may be civilly liable to the subject of the complaint. 65 Pa.C.S. Section 1110.
There are also criminal penalties for breaching the confidentiality of a matter before the
Commission. 65 Pa.C.S. Section 1109(e).
Finally, it is not for the State Ethics Commission to advise you whether you
should retain an attorney in this matter.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the respective city code.
Conclusion: As a member of the A City Council, you are a public official subject
to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, you would have a
conflict of interest as to matters involving a redevelopment plan for the City if such
matters would result in a financial benefit to you. Based upon the submitted facts, it
would not appear that your participation in redevelopment plan matters would result in a
financial gain to you. An example of a financial gain would be a reduction in your rent.
Absent a financial gain, you would not have a conflict of interest and would not
transgress Section 1103(a) of the Ethics Act by participating in matters involving the
redevelopment plan. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Confidential Advice, 03 -603
November 20, 2003
Page 5
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel